Friday, February 28, 2014

Azerbaijan is more than eight-thousand miles away
from the islands. This small country was once part of the Soviet Union deep in
the Caucus Mountains and right up against the Caspian Sea. It’s also pretty
wealthy with oil resources and its government has plenty of spending money. In
other words, it’s safe to presume that most folks here don’t think about
Azerbaijan all that much.

So why did two of our legislators take an
Azerbaijani holiday last summer? A few weeks ago, Civil Beat—an online news
organization in Honolulu—broke the story about how Representative Rida
Cabanilla and Mark Takai traveled to the distant country on a tour paid for by
that government. The price tag? $8,000.

Reporters came across the summer trip after spotting
it among the representatives’ disclosure statements filed with the Hawaii
Ethics Commission. Cabanilla and Takai said that they went to Azerbaijan to
attend a convention sponsored by oil companies and find opportunities to
promote Hawaii.

Cabanilla explained to reporters that Azerbaijani
lobbyists promoted the trip to improve relations with the United States.
Cabanilla apparently told Civil Beat that as a retired U.S. Army officer, she feels
it is important to foster a good relationship with Azerbaijan because of its resources
and its strategic place between the East and West.

The trip has got me thinking. A good relationship
between the United States and the former Soviet republic may be a positive
diplomatic step, but does that mean our state legislators ought to get involved?

And what about an oil-company sponsored holiday? Is that
an ethical problem? No way, says Takai. Civil Beat reported that Takai explained
to its reporters that at the time of the trip, the Hawaii Legislature had not
addressed any relevant issues that directly would benefit Azerbaijan so there
was no ethical problem in going on the trip.

But that may not be the case for the future. Taka
and Cabanilla introduced in the House this session two resolutions addressing a
very touchy subject in that part of the world.

House Resolution 13 states a number of facts that
you would not expect to find floating around our legislature. It addresses an
armed conflict that broke out between Azerbaijan and Armenia as the Soviet
Union collapsed. The countries have been (and continue to be) locked in a
territorial dispute for some time.

According to the resolution, the town of Khojaly in
Azerbaijan was the site of a massacre on February 25 and 26, 1992. There, the
resolution states that six-hundred men, women, and children were killed, and
thousands were wounded and captured by Armenian and Russian forces. The
resolution marks the twenty-second anniversary of the “Khojaly tragedy.” The
other resolution urges the United States to strengthen ties to Azerbaijan in
coming up with some kind of settlement with Armenia over this disputed region.

The factual claims in the resolutions have been hotly
disputed by our local Armenian-American community and the greater Armenian
population. The strange resolutions were defeated when sub-committees shelved
them indefinitely. The local Armenian community has declared it a victory.

But the question remains: why do it? Why would these
legislators come back from an all-expenses trip to an exotic country and then
officially stake out controversial positions that have a tenuous at best nexus
to our islands?

The other legislator Mark Takai doesn’t seem to have
a problem with taking sides. Last year he—along with other American
legislators—signed off on a birthday note to the president of Azerbaijan, Ilham
Aliyev. Takai congratulated Aliyev in his efforts to reduce crime within the
country and promoting allegiances abroad.

Aliyev has been criticized by many diplomats and
those that follow international relations as an autocrat. After taking office
in 2003, he eliminated term limits for himself from the constitution. He’s been
accused of running a corrupt government, clamping down on a free press, and rigged
elections. The infamous Wikileaks website released a cache of diplomatic cables
in 2012 that compare him to a mafia crime boss. Surely, Takai was aware of this
before congratulating him on reducing crime in his country eight time zones
away, right?

Takai hasn’t talked about the birthday note recently,
but perhaps his views on foreign policy will be examined soon. After all, he is
among the seven candidates running for Congress in the First District. What
exactly does Takai think about Azerbaijan?

There surely must be other places our legislators
can visit without causing all of this heat. Honolulu and the Azerbaijani
capitol city of Baku may have been sister cities since 1988, but then again,
Honolulu has 22 “sisters,” including far-off cities in Kenya, Morocco,
Venezuela, and France. Perhaps legislators should promote Hawaii in places with
less controversy. I hear France is nice.

Wednesday, February 19, 2014

When I was in the 5th grade at Haiku Elementary School, we took a field trip to the War Memorial Stadium. We had been waiting for this day to come for almost a year. Our section of the stadium (this was before it was remodeled for the Hula Bowl so there were no seats behind the end zones) was poised perfectly near the 50-yard line. All around us were other excited elementary school students from Maui.

It was D.A.R.E. Day - a presentation put on by the Maui Police Department. D.A.R.E. (drug abuse resistance education) is a nationwide program putting armed and uniformed officers in elementary schools for what seemed to me as a long time. The officer assigned to Haiku Elementary told us about drug abuse and had us vow never to use drugs, join a gang and, above all, to just say no.

This was the capping event of the program. Officers were there to rally the student troops and whip up a frenzy of excitement. There were all kinds of demonstrations of police power. There were the fierce German shepherds.

A guy with padding around his arms and shoulders fired blanks at an officer. Then the dogs were released on him and he tried to run.

As we watched the dogs rip up the padding, someone on a microphone explained that the places of attack were not lethal but designed to bring about so much pain that the target was no longer a threat or could no longer get away.

Next came the monster truck that revved its engines and crushed a junk car with the word "DRUGS" spray-painted on its doors. But the most memorable part for me was the helicopter.

A helicopter resembling the ones I'd seen in movies about the Vietnam War hovered above the stadium. The emcee of the event explained that what we were about to witness was a simulated "Green Harvest" raid. An officer rappelled down a rope and snatched up fake marijuana plants on the stage in the middle of the field. Then he waved at the crowd and pulled himself back into the chopper.

So that was it! Nearly every one of us from Haiku School was familiar with the sound of helicopters buzzing over our homes, streets and neighborhoods. Now we got to finally see it firsthand. When it was all over, we got to storm the field and check out police cars, talk to the officers and get a free soda.

I've learned a lot more about the police and especially "Operation Green Harvest" since that day. Police officers fly around in helicopters to spot marijuana-growing operations in the remote parts of the island. Turns out that the police departments receive grant money to keep the helicopters flying. The police work in conjunction with the U.S. Army National Guard and the Drug Enforcement Agency.

It is a terrifying experience reminiscent of scenes from "Apocalypse Now." Opponents say that the choppers sometimes fly as low as 75 feet above the ground. The buzzing and vibrations have damaged property, frightened animals and harassed residents. Their voices are finally starting to be heard.

The Big Island's county council has been openly hostile to this tactic. A few years ago, it passed an ordinance to deprioritize the operations. The police ignored it, and the county faced a lawsuit for its failure to implement the law itself. The county fought it and won, but the plaintiffs appealed.

Obnoxious police surveillance is part of the long, sordid history of our "War on Drugs." The war declared by President Richard Nixon may be falling out of favor these days, but make no mistake: It rages on.

Legislators are still reluctant to strike the harsh criminal penalties. Judges are still required to put more and more people into our prison system. And the extensive vigilance (and funding) of special units within police departments, public and private corrections industries and prosecutor's offices has not waivered. In fact, last week, our appellate court, the Intermediate Court of Appeals, found no error in the county's victory on the Big Island.

Looks like this year there are more bills that would pull us away from this aggressive tactic toward drug use. Last year there was similar talk, but the House killed all bills that would decriminalize the use of marijuana. Let's see if the bills this year meet a similar fate.

The "War on Drugs" is a war on our own people. The crackdown on narcotics has not helped people abstain from them. It has certainly not helped eliminate the contraband economy either. All that it has done is erode our confidence in the need to investigate and prosecute criminality by trivializing the crimes themselves. But that doesn't seem to matter. The war rages on.

Thursday, February 6, 2014

It's not every day when Article Six of our Hawaii Constitution makes it into the newspaper. The material is hardly riveting. But this week, the Judicial Selection Commission announced its list of six nominees in anticipation of the retirement of one of the most prolific and well-known justices on our state Supreme Court. It's a strong list.

The candidates include three trial judges, the state's head public defender, the chief judge of the Intermediate Court of Appeals, and a veteran trial lawyer. One of these candidates will join the Supreme Court once Associate Justice Simeon R. Acoba Jr. retires after his 70th birthday in March.

Every aspect of this story - from Justice Acoba's retirement to the list of six - comes from the carefully organized procedure outlined in our state constitution.

First, there's Justice Acoba's retirement. All state judges have to step down and retire when they reach the age of 70. It does not matter if they are still interested in the job or not. It's required.

Critics of this provision have argued that this provision is discriminatory. Age is just a number, they say. There is no real reason to require them to retire just because they reach a certain age. A few years ago, there was an attempt to amend the constitution to eliminate this mandate. Many speculated that it had a lot to do with the fact that both the chief judge of the Intermediate Court of Appeals and of the Hawaii Supreme Court were about to hit that crucial birthday. The attempts to amend the constitution failed and the provision remained in effect.

So once a judge or justice steps down, what happens next? How do we fill the vacancy? Enter the Judicial Selection Commission.

The commission was written into our constitution in 1978. It's composed of nine members selected by various government agencies. The Senate president and the speaker of the House pick two each, the chief justice of the Supreme Court picks one, the Hawaii State Bar Association selects two members, and the governor gets to pick two. Only two commissioners can be lawyers.

The commission announces a call for applicants to fill an anticipated vacancy. The applicants apply in secret and they are reviewed in secret. The commission quietly investigates each applicant through interviews and other means. Once the applications and investigations are done, the commission narrows it down to a list of no more than six nominees.

The commission changed the old way judges were selected: through direct appointment by the governor. The establishment of the JSC was supposed to make the process more open by curbing the patronage power of the chief executive of the state.

But there has been criticism of this commission. The late Judge Samuel King often argued that the JSC hid from the public an inherent political process. The applications, the investigations and the formation of a list are all done in secret.

This is exactly what the commission was supposed to curb. University of Hawaii law professor Randall Roth has also criticized the commission. When he and others investigated and wrote their now-famous expose on the Bishop Estate Trust and its collusion with the Hawaii Supreme Court in the 1990s, professor Roth found circumstantial evidence that linked the selection of Supreme Court justices with its role in appointing trustees to the Bishop Estate. Those days are long gone.

It seems like the appointment of justices and judges has been a relatively smooth process. But not quite.

Sometimes things go awry. When the JSC issues its list, the governor has only 30 days to decide. Second Circuit Judge Peter Cahill learned this the hard way. Gov. Neil Abercrombie selected him two days after the deadline. His appointment had no legal effect.

The constitution states that if the governor fails to appoint within 30 days, the commission itself makes the appointment. In Judge Cahill's case, the JSC took the hint and picked him.

From there, it's on to the state Senate. The Senate can reject the nominee. It's happened. Former Gov. Linda Lingle's first choice as chief justice of the Supreme Court was Katherine G. Leonard, a member of the lower appellate court. The Senate rejected Judge Leonard, much to the chagrin of the governor. It was the second such rejection in recent history: The Senate rejected Gov. John Waihee's selection of Sharon Himeno 19 years ago.

Pursuant to the constitution, Gov. Lingle went back to the list of six and appointed our current chief justice, Mark Recktenwald, whose leadership has been praised by just about everyone.

And so it begins again. The list of six that came out this week is the first step toward appointing a new member to our highest court. No matter what happens on the way to filling a vacancy, be certain that our constitution will guide us.